ram v. Isabel is no authority here, for it was suit, by action of debt, indictment, or inforformerly considered and repudiated by this court in the decision alluded to.

Lee and Law replied, and cited 2 Washington's Rep. 64, and Swift's Law of Evidence, 13.

mation." The cases under the authority of which this proceeding was brought are The Vengeance, The Sally' and The Betsey and Charlotte." But the act under which the Vengeance was prosecuted was the same with Marshall, Ch. J., delivered the opinion of the collection law of the 2d of March, 1799, secthe court, and stated that, as to the first exception 89, which prescribed a proceeding in the tion, the court had revised its opinion in the admiralty; the Sally was prosecuted under the case of Mima Queen and Child v. Hepburn, and confirmed it. As to the second exception, the record was not between the same parties. The rule is, that verdicts are evidence between par9] ties and privies. The court does not feel inclined to enlarge the exceptions to this general rule, and, therefore, the judgment of the court below is affirmed.

PPEAL from the Circuit Court for the Rhode A Island District. The Brig Samuel sailed from St. Bartholomews, an island belonging to His Majesty the King of Sweden, in the month of November, 1811, with a cargo consisting of rum, molasses, and some other articles, and arrived in Newport, Rhode Island, on the 8th of the following December, where the vessel and cargo were seized and libeled in the District Court as being forfeited to the United States, under the act of Congress prohibiting the importation 10*] *of articles the growth, produce or manufacture of Great Britain or France, their colonies or dependencies. The vessel and cargo were claimed by John Pierce and George Beach, both citizens of the United States. The District Court condemned both vessel and cargo. The Circuit Court condemned the vessel and the rum, but restored the residue of the cargo. From the sentence of the Circuit Court both the libelants and the claimants appealed to this

court.

Daggett, for the claimants, made three points:

1st. The proceedings ought to have been at common law, and not in the admiralty. 2d. The information is insufficient.

slave-trade act of the 23d of March, 1794, which indicates no particular proceeding; *whilst [*11 The Betsey and Charlotte was prosecuted under the act of non-intercourse with St. Domingo, of the 28th of February, 1806, wherein no method of recovering the penalties was specified. Supposing this to be a civil cause of admiralty and maritime jurisdiction, and that the District Court has jurisdiction of it as such, the proceedings may still be by information, as in the exchequer. Where a statute prescribes a particular remedy, or particular remedies, no other can be pursued. 2. The statute is penal, and requires strictly accurate proceedings. The libel alleges, generally, that the cargo was laden on board in some foreign port. The cargo was stated to have belonged, in the alternative or disjunctive, to Pierce and Beach, or to one Stillman, or some other citizen, or consigned to one of said parties; and it was alleged that the offense was committed with "the knowledge of the owner, or of the master." 3. The testimony of Oldham, a witness in the cause, was taken irregularly, and not used in the court below. The vessel and cargo were condemned upon the testimony of tasters only, against all the oral and documentary evidence. This testimony is novel; professional men and artists are credible witnesses in their own peculiar science or art; but this is matter of speculative opinion only not of known art or certain science. The witnesses can never be made responsible for perjury. Their evidence is contradicted.

1.

The Attorney-General, for the libelants. The "cargo could not have been the [*12 produce of St. Bartholomews, a sterile and unproductive island, used as St. Eustatius was during the war of the American revolution. It is more likely it was transshipped from a British than a Spanish colony; and, therefore, the claim is clouded with improbability. The case of The Odin may be invoked from the law of prize to show how little the fairest documentary evidence is to be regarded in comparison with the evidentia rei. Strip off this veil, and the onus is thrown upon the claimants, from which they cannot relieve themselves but by the strongest positive testimony. As to the evidence of the tasters, all our knowledge is derived through the senses. It is not unerring, but weighty; and the revenue laws rely upon it in collecting the duties on wines. The spirit and equity of the judiciary act of the 24th of September, 1789, were pursued in taking the deposition of Oldham; he was a seaman serving in the flotilla of gun-boats at Newport, and

3d. The testimony was insufficient to war- liable to be ordered to some other place. 2. It rant a condemnation.

1. The act of the 1st of March, 1809, on which this libel is founded, directs, that the penalties and forfeitures "shall be sued for, prosecuted and recovered, with the costs of

1.- -3 Dall. 297.

2.-2 Cranch, 406.

3.-4 Cranch, 443.

4.-2 Burr. 803, Rex v. Robinson.
5.-1 Gallison. 85, The Bolina.
6.-1 Rob. 217.

is novel doctrine that this is a libel as contra- | its terms and in its essence, is an information. distinguished from an information. It is a Consequently, where the cause is of admiralty libel in the nature of an information; and the jurisdiction, and the proceeding is by informaprocess of information is used in the admiralty tion, the suit is not withdrawn, by the nature as well as in the exchequer. In alleging the of the remedy, from the jurisdiction to which it offense, reasonable certainty only was neces- otherwise belongs. sary; the charge is insufficiently specific to have put the claimants on their guard; and to require more would be to prevent the conviction of offenders. The case of The Bolina does not apply to the present question.

The

2d. The second objection made by the claimants to these proceedings is, that though the words of the act may be satisfied by a libel in the nature of an information, yet the same strictness which is required in an information 13*] *Daggett, in reply. The deposition of at common law will be necessary to sustain a Oldham cannot be admitted, unless it be au- libel in the nature of an information in the thorized by statute or common law; prize pro- court of admiralty; and that, testing the libel ceedings are peculiar; soldiers and sailors are by this rule, it is totally insufficient. not excepted by the letter of the judiciary act, court is not of opinion that all those [*15 and a class of exceptions cannot be implied. technical niceties which the astuteness of The burthen of proof in fiscal causes is not ancient judges and lawyers has introduced into thrown on the claimants unless by positive criminal proceedings at common law, and law. There can be no difficulty in convicting which time and long usage have sanctioned, offenders, as these proceedings are amendable.' are to be engrafted into proceedings in the courts of admiralty. These niceties are not already established, and the principles of justice do not require their establishment. It is deemed sufficient that the offense be described in the words of the law, and be so described that if the allegation be true the case must be within the statute. This libel does describe the offense, and is, therefore, deemed sufficient.

Marshall, Ch. J., delivered the opinion of the court:

On the part of the claimants it is contended, 1st. That the proceedings ought to have been at common law, and not in the admiralty. 2d. That the information, if it be one, is insufficient. 3d. That the testimony is wholly insufficient to warrant a condemnation.

In arguing the first point, the counsel for the claimants endeavored to take this case out of 14*] the *principle laid down in The Vengeance, and in other cases resting on the authority of that decision, by urging a difference of phraseology in the acts of Congress. In that part of the act on which this prosecution is founded which gives the remedy, it is enacted, "that all penalties and forfeitures, arising under, or incurred by virtue of this act, may be sued for, prosecuted, and recovered, with costs of suit, by action of debt, in the name of the United States of America, or by indictment or information, in any court having competent jurisdiction to try the same." Debt, indictment, and information, are said to be technical terms designating common law remedies, and, consequently, marking out the courts of common law as the tribunals in which alone prosecutions under this act can be sustained. There would be much force in this argument if the term "information" were exclusively applicable to a proceeding at common law. But the court is of opinion that it has no such exclusive application. A libel on a seizure, in 1.-1 Gallison, 22. Anonymous.

The decision cited by the counsel applies only to the power of the Circuit Court to allow amendments in revenue causes or proceedings in rem, before appeal to the Supreme Court. But it may be interesting to the reader to be informed that the Supreme Court may remand the cause to the court below, with instructions to amend the proceedings. Thus, in the cases of The Caroline and The Emily, at February term, 1813, which were informations in rem on the slave-trade act of the 22d of March, 1794, the opinion of the court was, that the evidence was sufficient to show a breach of the law, but that

the libel was not sufficiently certain to authorize a decree of condemnation. The following decree was therefore entered: "it is the opinion of the court that the libel is too imperfectly drawn to found a sentence of condemnation thereon. The sentence of the Circuit Court is therefore re versed, and the cause remanded to the said Circuit Court with directions to admit the libel to be amended." Vide infra, The Edward.

So

3d. The third and material inquiry respects the evidence. Is this cargo of British origin?

It

In the examination of this question, the first point to be decided is the admissibility of the deposition of Thomas Oldham. That deposi. tion is found in the record of the Circuit Court, with a certificate annexed to it, in these words: "N. B.-The deposition of Thomas Oldham was filed after the trial of the case, by order of the court." Some of the judges are of opinion that this certificate of the clerk is to be disregarded, and that the deposition, being inserted in the record, must be considered as a part of it, and must be supposed to have formed a part of the evidence when the decree was made; but the majority of the court is of a different opinion. The certificate of the clerk to the deposition is thought of equal validity as if forming a part of his general certificate. shows that this deposition formed no part of the cause in the Circuit Court, and is, therefore, liable to *every exception which [*16 could be made to it, if it was not found in the record, and was now offered for the first time to this court. On inspection it appears to be a deposition taken before a single magistrate, not on order of court on a commission, with notice to the attorney of the claimant, who did not attend. It must be sustained by the act of ConThe reason asgress, or it is inadmissible. signed for taking it is, "that the deponent is a seaman on board a gun-boat of the United States, in the harbor of Newport, and liable to be ordered to some other place, and not to be able to attend the court at the time of its sitting." The 30th section of the judiciary act directs, that "the mode of proof by oral testimony, and the examination of witnesses in open court, shall be the same in all the courts of the United States." The act then proceeds to enumerate cases in which depositions may be taken de bene esse. The liability of the witness to be ordered out of the reach of the court is

On this conflicting testimony much contrariety of opinion has taken place. The omission of the claimants to furnish other testimony supposed to have been within their reach, and of which the necessity would seem to have been suggested by the nature of the prosecution, impairs, in the opinion of several of the mony might otherwise be entitled. The court finds it very difficult to form an opinion satisfactory to itself. *So situated, and under [*19 the peculiar circumstances attending Oldham's deposition, the majority of the court is of opinion that the cause be continued to the next term for further proof, which each party is at liberty to produce.

not one of the causes deemed sufficient by the | London, were regularly imported from La law for taking a deposition de bene esse. In Guira in two vessels, which he names, whose such case there would seem to be a propriety in masters he also names. They are the same that applying to the court for its aid. But, sup- are mentioned by Samuel Marshall. posing this objection not to be so fatal as some of the judges think it, still the deposition is taken de bene esse, not in chief; and a deposition so taken can be read only when the witBess himself is unattainable. It does not appear in this case that the witness was not within the reach of the court, and might not have given his testimony in open court, as is re-judges, the weight to which their positive testiquired by law. Had this deposition been offered in court before, or at the time of the trial, and used without objection, the inference 17*] *that the requisites of the law were complied with, or waived, might have been justifiably drawn. But the party is not necessarily in court after his cause is decided, and is not bound to know the fact that this deposition was ordered to be filed. For these reasons it is the opinion of a majority of the court that the deposition of Thomas Oldham ought not to be considered as forming any part of the testimony in this cause.

The deposition of Oldham being excluded, the prosecution rests chiefly on the depositions of Benjamin Fry and William S. Allen. These witnesses are both experienced dealers in rum; have both tasted and examined the rum of this cargo, and are both of the opinion that it is of British origin. In the opinion of all the judges this testimony is entitled to great respect. The witnesses say that there is a clear difference between the flavor of rum of the British and the Spanish islands, though they do not attempt to describe that difference, and that their opinion is positive that this is British rum.

To weaken the force of this testimony, the

claimants have produced the depositions of

Further proof ordered.1

A for the Massachusetts District, affirming the decree of the District Court condemning

PPEAL from the decree of the Circuit Court

said vessel.

in October, 1810, and the information alleges This ship was seized in the port of Boston, that the ship, in March, 1810, departed from Charleston, S. C., bound for a foreign port, to wit, Liverpool in Great Britain, with a cargo of merchandise on board, without a clearance, and without having given the bond required

several witnesses, also dealers in rum, who declare that the difference in the flavor of the best Spanish rum and that of the British islands, is inconsiderable, and that they cannot distinguish the one from the other; that they believe the best judges find great difficulty in making the discrimination. This testimony would, perhaps, have been entitled to more influence had the persons giving it tasted the rum imported in the Samuel, and declared 18*] themselves incapable of deciding on its 1. Revenue causes are, in their nature, causes origin; for, although in some cases the differ- of admiralty and maritime jurisdiction. In Great ence may be nearly imperceptible, in others it Britain all appeals from the vice-admiralty courts in those causes are within the jurisdiction of the may be considerable. The testimony, however, High Court of Admiralty, and not of the privy on which the claimants most rely is found in council, which is the appellate tribunal in other This point was determined so the deposition of Samuel Marshall and of plantation causes. Andrew Furntrad. Samuel Marshall, the brother long ago as the year 1754, in the case of The Vrow Dorothea, decided before the High Court of Deleof John and Joseph Marshall, merchants of gates, which was an appeal from the vice-admiralty St. Bartholomews, from whom the rum in judge of South Carolina to the High Court of Ad miralty, and thence to the delegates. The appellate question was purchased, deposes, that he has jurisdiction was contested upon the ground that lived with them for two years, and had, at the prosecutions for the breach of the navigation and were not, in their nature, time of giving his deposition, they being absent other revenue laws causes civil and maritime, and under the ordinary from the island, the care of their business. jurisdiction of the Court of Admiralty, but that it That the rum and molasses constituting the was a jurisdiction specially given to the vice-adcargo of the Samuel were imported into St. miralty courts by stat. 7 and 8, Wm. III. ch. 22, s. 6, which did not take any notice of the appellate Bartholomews from La Guira, in vessels which jurisdiction of the High Court of Admiralty in such he names, and are of the growth and produce cases. The objection, however, was overruled by of that place. Andrew Furntrad is the collector the delegates, and the determination has since received the unanimous concurrence of all the of the port of Gustavia in St. Bartholomews, common law judges, on a reference to them and deposes, that the quantity of rum and from the privy council. The proceeding in this case molasses which were laden on board the Sam- is called "a libel of information;" showing that uel, and which cleared out regularly for Newbel and information in the admiralty are synonymous terms. 2 Rob. 245, The Fabius.

by the non-intercourse act of the 28th of June, argument was very imperfect. The word "in1809, ch. 9, s. 3. The claimants admitted, that cluding," in the judiciary act, ought to be conthe ship proceeded with her cargo (which con- strued cumulatively. It provides that the sisted of cotton and rice) to Liverpool; but they district courts shall "have exclusive [*22 alleged that the ship originally sailed from original cognizance of all civil causes of adCharleston, bound to Wiscasset, in the District miralty and maritime jurisdiction, including of Maine, with an intention there to remain all seizures under laws of impost, navigation, until the non-intercourse act should be repealed, or trade, of the United States, where the and then to proceed to Liverpool. That by seizures are made on waters which are navireason of bad winds and weather, the ship was gable from the sea by vessels of ten or more retarded in her voyage, and on the 10th of tons burthen, within their respective districts, May, 1810, while still bound to Wiscasset, she as well as upon the high seas," etc. The prespoke with a ship from New York, and was sumption arising from the collective use of informed of the expiration of the non-inter- debt, information, and indictment, in the noncourse act, and thereupon changed her course, intercourse act, is, that they relate to a com21*] and *proceeded to Liverpool. The mani-mon law jurisdiction. The word information fest states the cargo to have been shipped by cannot be synonymous with libel, because the sundries, consigned to Mr. P. Grant, Boston. first is a common law, the second a civil law The Attorney-General and Law argued the proceeding. A common law proceeding may be case for the appellees on the facts, and cited applied by statute to admiralty suits. The the case of The Wasp,' which was an informa- statute 28th Henry VIII. c. 15, prescribes a tion under the same section of the same act. common law process (indictment) for offenses They contended that the burden of proof was triable in the admiralty. thrown upon the claimant, inasmuch as the law requires a bond to be given, if the ship was bound to a port then permitted, conditioned that she should not go to a prohibited port.

Dexter, for the appellants and claimants, stated, that the suit was not founded on the same act with that in the case of The Samuel;2 but that the same objection existed as to the form of the process. It is true, the judiciary act of the 24th of September, 1789, c. 20, s. 9, has declared that certain causes shall be causes of admiralty and maritime jurisdiction, but it does not, therefore, follow that a forfeiture created by a new statute shall be enforced by the same process. The arguments urged against it in the cases subsequent to that of the Vengeance, have always been answered by the mere authority of that case. But the decision in that case ought to be re-examined, because it affects the right of trial by jury, and because the

1.-1 Gallison, 140. 2.-Ante, p. 9.

3.-3 Dall. 297.

4. Before the statute 28th Henry VIII., c. 15, the admiralty had a very extensive criminal juris diction, which seems to have been coeval with the very existence of the tribunal. in which it proceeded according to the civil law, and its other own peculiar codes; but by the process of indictment found by a grand jury, and a capias thereupon delivered by the admiral or his lieutenant, to the marshal of the court, or the sheriff. See Clerk's Praxis, Roughton's Article cited therein, 122, note, c. 16, 17. Exton, 32. Selden de Dominio Maris, 1, 2, c. 24, p. 209, 4 Rob. 73. Note (a), The Rucker. This criminal jurisdiction, independent of statutes, still exists; and all offenses within it, which are not otherwise provided for by positive law, are punishable by fine and imprisonment. See 4 Black. Com. 263, Brown's Civ. & Adm. Law, Ap pendix, No. 111. The statute 28th Henry VIII., c. 15, provides, that all treasons, felonies, etc., on the seas, or where the admiral hath jurisdiction. etc., shall be tried, etc., in the realm, as if done on land; and commissions under the great seal shall be directed to the admiral or his lieutenant, and three or four others, etc., to hear and determine such offenses, after the course of the laws of this land for like offenses done in the realm. And the jury shall be of the shire within the commission. Stat. 33d Geo. III., c. 66. Under this provision the sessions at the Old Bailey are now held, at which the judge of the High Court of Admiralty presides, and common law judges are included in the commission. But it is held that this statute

Story, J. That was the High Commission Court.

Dexter answered that he was aware of it, but that a suit may be a cause of admiralty and maritime jurisdiction, and yet triable by common law process.*

*Story, J., delivered the opinion of the [*23 court.

This case depends on a mere question of fact. After a careful examination of the evidence, the majority of the court are of opinion, that the decree of the Circuit Court ought to be affirmed. It is deemed unnecessary to enter into a formal statement of the grounds of this opinion, as it is principally founded upon the same reasoning which was adopted by the Circuit Court in the decree which is spread before us in the transcript of the record.

Decree affirmed with costs."

After stating the facts of this case, the learned judge proceeds. "Since I have had the honor to sit in this court I have prescribed to myself certain rules, by the application of which my judgment, in cases of this nature, has been uniformly [*24 governed. 1st. Where the claimants assume the onus probandi (as they do in this case) not to acquit the property unless the defense be proved be yond a reasonable doubt. 2d. If the evidence of the claimants be clear and precisely in point, not to indulge in vague and indeterminate suspicions, but to pronounce an acquittal, unless that evidence be clouded with incredibility, or encountered by strong presumptions of mala fides, from the other circumstances of the case.' He also alludes to the absence of documentary evidence to support the defense set up by the claimants as affording an example of the application of these rules, as well as of another rule equally important. "What strikes me as decisive against the defense is the entire ab sence of all documents respecting the cargo. Bils of lading, letters of advice, or general orders, must have existed. If the cargo had been destined for Boston only, there would not have been so much difficulty. But the defense shows its destination ultimately for Liverpool. Where, then, is the contract of affreightment, the bills of lading. the I t ters of advice, and the correspondence of the shi